Welcome to Intellectual Property Rights by dfhdhdhdhjr


									  Trademark protection

          Overview by
Associate professor Bengt Domeij
  What is intellectual property?
• Not physical objects, but technical functions,
  characteristic features of a product or shapes
  and individual expressions.
• These can be integrated in a product and can
  make the product valuable, but they are not any
  individual product or service.
• The essence of an IPR is the possibility to
  exclude others.
• What transfers of ownership occur when
  someone sends a letter?
• What IPRs are included in a book?
          The universe of IPRs
• Copyrights/database rights (unregistered, personal or
  artistic expression)
• Patents (technical product or process)
• Trademarks (any sign capable of being represented
• Design rights (appearance of a product or two-
  dimensional pattern)
• Plant variety rights
• Supplementary protection certificates for
  pharmaceuticals and plant protection agents
• Geographical indications
• Integrated chip protection
• (Trade secrets/confidential information)
             History of IPRs
•   Copyrights – authors and bookprinters
•   Trademarks – Guilds
•   Patents – Privilegies awarded by Crown
•   Design rights – 20th century
•   Continously increased importance of IPR,
    globalization and easier manufacturing.
      Consequences of IPRs
• Monopoly profits
• Shift from price competition to competition
  by technical/design/image/artistic
• Controversies: least developed countries,
  file-sharing on the Internet.
              IPR institutions
 National patent offices (grant of national rights)
 National courts (validity and infringement of
  national and EU-IPRs)
 Office of Harmonization in the Internal Market
  (OHIM) (grant of EU trade marks and designs)
 Community and national Plant Variety Office
  (grant of community/national plant v. rights)
 The European Patent Office (grant of EPO-
  patents, that bundle of national patents)
  Paris Convention for the Protection of
         Industrial Property, 1883
• “National treatment” - intellectual property
  systems of any contracting state are accessible
  to the nationals of other states party to the
• “Priority rights” - an applicant from one
  contracting State shall be able to use its first
  filing date (in one of the contracting State) as the
  effective filing date in another contracting State,
  provided that he files another application within
  6 (for industrial designs and trademarks) or 12
  months (for patents and utility models).
    ”Literary or aristic work” including:
•   Texts
•   Computer programs
•   Music and drama
•   Film, photos, paintings
•   Architecture and applied art

• Need for personal creation
• Software directive: “It has to be made
  clear that only the expression of a
  computer program is protected and that
  ideas and principles which underlie any
  element of a program, including those
  which underlie its interfaces, are not
  protected by copyright under this
         Personal creation
”Certain degree of independence and
  originality” Swedish Supreme Court
Flag of northern Sweden
• Words, symbols or shape of products
• Only for a category of products
• Only for use in trade
• Protection against buyer confusing the
  commercial origin
• Also goodwill-protection
• Purpose – The market for lemons, Akerlof
• Nationally or at OHIM
• In one or more of 45 product and service
• Chose what the trademark will be used for,
  invalid after 5 years in classes for which it
  is not used.
    Swedish trade mark registrations
             for Coca-cola
•   TM          Application no         Reg. no   Classes
•   COCA-COLA1900/33386         0033386          32
•   COCA-COLA1900/76311         0076311          3, 29, 30, 32,
•   CHERRY COCA-COLA            …                …
•   COCA-COLA IS THE MUSIC …                     …
•   ALWAYS COCA-COLA            …                …
•   Coca-Cola Disfruta Aquí y ahora
•   Etc, etc
              Key criteria
• Descriptiveness – same products, first
• Graphic representation
•   Generic        Pen
•   Descriptive    Yellow
•   Suggestiv      Coppertone (tanning oil)
•   Arbitrary      H&M
•   Non-existant   Exxon

• Suggestive TM are normally possible to
  register, (BABY-DRY).
Colour PMS 2613.
    Infringement - confusingly similar
•   Average buyer
•   Similar products
•   Similar trademarks
•   Combination of the two
Use of goodwill even though
 openness about the fake
Goodwill protection
• Good-will irrespective of confusion, for the
  most well-known trade marks, qacross all
• ”Absolut nöje” Saturday nights at TV3 was
  not allowed.
     Mention of trademark, if in
legitimate purpose for spare parts,
            trade, etc.

• Article 3 (1)(e) of the Directive cannot be
  overcome by establishing that there are other
  shapes which allow the same technical result to
  be obtained.
• Signs consisting exclusively of the shape of a
  product necessary to obtain a technical result is
  preclude from registration, because trade mark
  monopoly on such marks would illegitimately
  restrict competitors trading in identical or similar
  goods which incorporated such a function.
Degeneration – Jeep Hoover, etc.
EC Court of Justice has tried the Swedish
treade mark ”Bostongurka”. It rul,ed that it
was descriptive for the commercial origin,
because managers of stores recognized
who the manufacturer were. Not just a
kind of product.
             Use obligation
• Invalid if not used for the last five years
• Licensable – minimum royalty, royalty
  based on sales
• Infringement by importation
• Parallell importation from other EU
  countries allowed
• Loss of goodwill – Dior-case

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